Project work of

LAW OF TORTS

TOPIC: Define and differentiate the

concept of law of trespass under law of
crime and torts
Introduction
Trespass: an unlawful act causing injury to the person, property, or rights of another, committed
with force or violence actual or implied.

Trespass is an invasion in to another’s exclusive right to

possession of property. It is a direct unlawful interference with another’s property.

Generally the main elements of trespass are:

An unlawful intrusion or invasion upon a property

Intent of intrusion

With force and

Consequent injury to the owner

A trespass is said to be committed when one enters upon the land and property of another
without the consent either expressed or implied, of the owner occupier thereof. A court has to
decide whether a trespassers intrusion has violated a legally protected possessory interest of a
plaintiff. There must be an affirmative act, or a misfeasance causing intrusion in order to
constitute an act of trespass. A person’s mere presence on a property without an act will not be
subject to tort liability.

A trespass becomes intentional when the acts leading to the invasion were done with
knowledge that a trespass would result. It is not required that the acts were done for the specific
purpose of causing a trespass or injury. Usually, the age of a child will not protect him/her from
liability if his/her act amounts to a trespass. However, an initial determination must be made
whether a child trespasser formed the intent to do the physical act as a trespass is an international
tort. While doing so, a child’s age, experience ,and knowledge must be taken into consideration.

A landowner has to prove intent to trespass or cause harm by different intentions in order to
claim damages for intentional trespass and nuisance. But when a trespass results in damage, a
trespasser is liable without reference to negligence or duty to due care.

A reasonable foreseeability that an act would intrude a plaintiff’s possessory interest may be
considered an element of trespass. A trespasser need not foresee the specific injury that may
occur due to his/her act, Intrusions such as noise and vibrations may constitute a trespass if they
cause actual physical damage.

Force may be treated as an element when trespass is the immediate result of force originally
applied by a trespasser. It is not essential that a defendant act with a specific intention, if an
injury is the immediate result of a force applied and damage occurred as a result.

A party is liable for trespass even though he/ she acts under a mistaken belief of law or in good
faith. A mistaken belief that she/he is committing no wrong, however reasonable will not be
exempt a trespasser from liability. Thus, a person who believes a land is his/her own, or that
he/she has the consent of the owner, or legal privilege of entry, although she/he is a child too
young to be aware of the wrong will be treated a trespasser. However, some jurisdictions protect
individuals under the innocent trespasser rule who enter the land of another under a mistaken
belief that it is permissible to do so. Under this rule, an unintentional entry onto another’s land
does not automatically subject a person to trespass liability even though it causes harm to the
possessor of the land.

Generally, an actual injury must have occurred to the property or rights of a person for liability
for the trespass to be arise. It may also require that an intrusion on land must be substantial and
has resulted in harm. However it has also been held that an unauthorized intrusion upon
another’s land id considered as injury. One who intentionally and without consent or other
privilege enters another’s land is liable as a trespasser irrespective of whether harm is thereby
caused to the other person’s legally protected interests.
Trespass under ‘law of torts’

The tort of trespass is one of the oldest and widest writs; it covers both criminal and civil aspects
within its ambit. The Idea of security of person, i.e., freedom from every kind of violence and
bodily injury stands at the root of trespass to person. A person is said to have committed criminal
trespass to a person when he is found to be guilty of direct coupled with forcible bodily
interference without any consent and a suit is actionable even if no bodily injury has been
sustained, as long as a legal right has been violated such action by way of a law suit can be taken.
Therefore, in case of criminal trespass there are essentially three ingredients namely a) Direct
and forcible bodily intervention b) without any consent c) Legal injury was suffered. The
interference is considered to be direct even if a third part intervened in the middle, if the act of
such partly was involuntary and in apprehension of danger by the defendant. Criminal trespass
includes .

1) Assault – Assault has been defined as “An attempt or offer to apply force to the person of
another directly or indirectly, if the persons making the attempt or offer causes the other
to believe on reasonable grounds that he has present ability to execute his purpose .It is
the overt act indicating an immediate intention to commit a battery coupled with the
capacity of carrying with that intention. Therefore a person can be guilty of assault under
the offence of battery but not vice versa. Assault also comes under the purview of the
Indian Penal Code i.e. under section 351.

2) Battery – Battery consist of touching another person hostilely or against his will, the
aim of battery is to cause grievous hurt to another person. The landmark case of Cole V.
Turner.laid down the principles of battery being

(i) The least touching of another in anger is battery

(ii) If two or more meet in a narrow passage and without any violence or design of harm,
the one touches the other, gently, it will be no battery
 (iii) If any of them use violence against the other, to force his way in a rude ordinate
manner, it will be a battery ; or any struggle about the passage to that degree as may do
hurt, will be a battery. Further it had said that intention must necessarily be considered in
case of battery

3) False Imprisonment – This means total restraint on a person’s liberty without any
legal justification for imprisonment. This is in direct contravention with not only
common law principles but also with the constitution. It is not necessary that the plaintiff
beware of the situation he is in for example if he is in a room and asleep, if the door is
locked there will be still imprisonment. The most important part of this being that there
should be total restraint
Criminal trespass: comes under section 441 of IPC

There are two kinds of property –movable and immovable.

In criminal trespass, the offences are dealing with the deprivation of property generally relate
to movable property. Indeed there are only three offences: extortion, criminal breach of trust
and cheating in which immovable property may be involved but even in those offences,
movable property is generally the subject matter of the offences. These three offences do not
contain any statutory bar to immovable properties becoming the subject matter of such
offences. The outstanding fact about trespass is that it always relates to immovable property.
A person may not only enjoy the benefits of property belonging to him or in his legitmate
possession but he may enjoy them to exclusion of in and privacy from others. Privacy is an
essential element in human life; it is essential for growth and development of human
personality and in its own peculiar manner, contributes to human happiness. It is true that
man is social but to say, that he is absolutely social is not true. Privacy gives us an ease and
security of feeling and law recogniges this important aspect of life.

One may feel insulted and annoyed by intrusion on

one’s privacy, but this by itself will not afford a ground for criminal action through it may
justify a claim for damages at civil law. The essence of a criminal wrong consists in the
intent behind the act rather than in the consequences following it, and if intimidate, the
intrusion assumes a criminal character and the law punishes it. The one important fact about
criminal trespass is that it is a means to an end, not an end in itself. Viewed in its simple
form,the object of trespass before it may be called criminal, may be to inflict a sentimental
wound-to insult, or intimidate and in graver, forms it may be the commission of an offence
against person or property or any other offence for which entry upon the premises is
necessary. The attending circumstances give rise to the aggravated forms of an offence.
Criminal trespass differs from other offences, so far discussed, in that it does not necessarily
imply dishonesty, fraud or deceit.

There are five definitions of offences which may be placed under the head ‘criminal
trespass’. They are as follows:-

1. Criminal Trespass {Section 441 and 447}

2. House Trespass {Section 442 and Section 448 to 452}

3. Lurking House Trespass {Sections 443,444 & 455 to 460}

4. House breaking {Sections 445,453 to 455}

 5. House breaking by night {Sections 446 and 456 to 460}

Section 441. Criminal Trespass.- Whoever enters into or upon property in the possession
of another with intent to commit an offence ,or to intimidate, insult or annoy any person in
possession of such property, or having lawfully entered into or upon such property
unlawfully remains there with intent thereby to intimidate, insult or annoy any such person,
or with intent thereby to intimidate, insult or annoy such person, or with intent to commit an
offence, is said to commit criminal ‘trespass’.

The punishment for the offence of criminal trespass is provided in Section 447 I.P.C.

Ingridients.- The essential requisties for the offence of criminal trespass are as follows:-

(i) Person’s entry into or upon the property in the possession of another person;
(ii) An entry of a person which was lawful at the time but has now become unlawful. The
person is remaining unlawfully upon the property of another.
(iii) Unlawful remaining upon the property of another must be followed with-
(a) to commit an offence, or
(b) to intimidate, insult or annoy person in the possession of the property.

Civil Trespass : essentially consists of trespass of property .

It is the wrongful interference with land which is in the possession of the plaintiff. This tort
consists of three major ingredients (i) Entering upon land which is in possession of the plaintiff
(ii) standing or walking upon such land or Placing or projecting any object upon it without any
legal justification. If the defendant even places a foot on the plaintiff’s property unlawfully, it is
in law as much a trespass as if he had walked half a mile on it.

Trespass to land
The tort of trespass can be defined as an unjustifiable physical interference of land in possession
of one party by another. Under English common law where these principles of torts emanate,
trespass does not form a criminal act but in the Indian Penal Code it has been given recognition
i.e. under section 441. But it defines trespass as unjustifiable physical interference with the
 possession of property of the claimant with requisite intention of doing so. The Intention part is
present due to it being under a criminal code where in ‘mens rea’ is a part. Under English
Common Law the maxim that is used for trespass is ‘trespass quare clausam fregit’ which means
“because he (the defendant) broke or entered into the close”. The tort of trespass requires
essentially only the possession of land by the plaintiff and jut encroachment by some way by the
defendant. There requires no force, unlawful intention or damage nor the breaking of an
enclosure. The express mention of the word interference is mainly there to imply permission.
Permission to encroach onto one’s land can either be obtained by the person in possession or by
virtue of authority.

One of the most important ingredients of a tort of trespass is the fact that the land in question
which has been encroached upon essentially needs to be in the direct possession of the plaintiff
and not just mere physical presence on it. For example it is to be noted that a cause of action in a
suit for trespass doesnot arise in the case where a servant is staying on his masters property.But a
tenant of a property can bring about a cause of action against anyone encroaching onto his
property during the period of his lease and even against the lessor if express conditions in the
contract empower him Lessor –Lesse Relationship

Another essential provision of the tort of trespass includes in the directness of the act. If the act is
direct i.e. arising out of the natural consequences of the act of the defendant then it is valid. If the
consequences of the act are a result of a remote effect of an act then it is not held to be a valid
suit. So if the defendant erects up a tree which leads to growing of branches and boughs and
roots onto the land of the claimant then it is not held to be trespass but nuisance. There is a thin
line between nuisance and trespass. Trespass is encroachment upon property whereas nuisance is
interference upon another’s right to enjoy his property. This is the test to be applied to segregate
the tort of trespass from the tort of nuisance. But it is worthy of being noted that directly causing
an object to enter onto another’s land does amount to trespass. Therefore if a person’s hounds
enter the other’s land and there was requisite intention of making the hounds enter or there was
negligence in taking care of the hounds so as to enable them to enter onto another’s land it forms
the tort of trespass. Here it should be seen that it is a direct act as either the encouragement or the
negligent act of not taking due care of the hounds to enter onto the plaintiff’s land lead to the
 consequence of trespass. Henceforth it can be ruled out that there was any intervening act.

It is a well known principle that if a person enters upon another’s land and stays on it, the act is
connoted as continuing trespass. So either placing gods on the plaintiffs land and not removing
them or staying on the plaintiff’s land and not moving way form’s continuing trespass. It was
seen in the case of Homes V. Wilson[1] that authorities had constructed a road/bridge and to
support such infrastructure had erected buttresses on the plaintiff’s land and had not removed
them. The authorities were liable to pay full compensation and had a further action in continuing
trespass in which they were held liable. The act of continuing trespass remains until such object
or act is removed or stopped respectively.

Furthermore the owner of a land is entitled to the airspace above him but he is aerial trespass has
a very important ingredient which is that the object that enter’s his land aerially should be at such
height that it violates his right to enjoy his property and moreover violate his right of ordinary
use of his land. Therefore it can be said that an airplane that is passing at a height over the
plaintiff’s land cannot for the act of trespass, because it doesnot violate the plaintiff’ ordinary use
of his land.

The subject matter for an action is a notable point. Merely walking on a land possessed by the
plaintiff forms a tort as it involves encroaching upon the legal right to own property. The general
principle of subject matter was prescribed in the many cases. It was held that anything associated
with the soil and which is capable of being possessed individually forms the subject matter in the
tort. Therefore if there is any damage incurred upon any object which is associated with the land
of the plaintiff an action in trespass may be instituted There are many remedies to the tort of
trespass -:

a) Damages – The claimant is entitled to full reparation for his loss incurred. Generally
depreciation in the selling value is an adequate measure for destruction or damage to the subject
matter’s in course of the tort of trespass. If there is an adverse effect onto business due to
trespass the claimant is entitled to recover the profits which were lost. This is called special
damages.
b) Injunctions – These are present for in the case of trespasses to restrain the trespasser. As it was
seen in the case of Nelson V. Nicholson[2] where the Plaintiff had resolved a dispute over the
boundary with the defendant. In resolving this dispute, it became apparent that the defendant had
planted a tree on the plaintiff’s land. The plaintiff filed for a mandatory injunction against D to
get the bush removed

Trespass To Person

English law knows no tort of intention, although it does acknowledge a tort of negligence. The
explanation of the paradox is historical. Until The middle of the last century and before the forms
of action were abolished, wrong doing was remedied by variants of trespass or case. Liability for
intentional conduct was distributed among these two and over the years some form of liability
for intention acquired special names, such as assault and battery, etc. That did not happen with
careless conduct, which fell under trespass or case depending on whether the resulting harm was
direct or consequential.

The tort of trespass then was empowered to encompass the wrongs such as

a) Assault

b) Battery

c) False Imprisonment

The perquisites for these acts all fall under the categories that have been prescribed under The
basic principle of this is that there should be a requisite intention to cause harm or there should
be a direct intervention of the human body. The tort of trespass to person essentially contains the
following ingredients -:

a) Defendant’s State Of Mind – In the case of battery what is crucial, then is to define what is
meant by ‘intentional act’. In this context there are two broad possibilities; One that the
Defendant intended only to act in the way that he did and secondly the Defendant both intended
to act in the way that he did and the resulting contact with the claimant. In most cases there is a
distinction here of little consequence. If the Defendant aims a punch at the Claimant and
succeeds in striking the latter there is nothing to separate the Claimants act from the outcome of
the act. But in some circumstances the Defendant may do a thing without intending a particular
outcome. If the Defendant aims his rifle at the claimant, then pulls the trigger, there is no doubt
that he intended to shoot the claimant. But if the Defendant aims his rifle at a partridge on a
hunting trip but accidentally shoots the Claimant, it is clear that the Defendant intended the act
and not necessarily the outcome. In such circumstances it would be probably stretching a tort too
far to hold the Defendant liable. And in the case of False Imprisonment the tort should be
intentional in the sense that the defendant must intend to do an act which is least substantially
certain to effect the confinement. There is no need to show malice. Indeed even there is good
faith on the part of the defendant, he may still be liable for the intentional confinement of the
claimant. Thus, in R V. Governor Of Brockhill prison, ex P Evans (no 2)[3] . A prison governor
who calculated the claimants day of release in accordance with the law as understood at the time
of her conviction was held liable when a subsequent change in the law meant that the prisoner
should have been released 59 days earlier.

b) No Consent - This ingredient is not only applicable to false imprisonment but also to battery.
The absence of consent is so inherent in the notion of a tortuous invasion of interests in the
person that the absence of consent must be established by the claimant. This might at first seem
rather odd but any lingering doubt that the onus of proving absence of consent lies on the
claimant was laid to rest in Freeman V. Home Office[4]. A prisoner alleged that he had been
injected with powerful mood changing drugs against his will. The judge held that since the
essence of battery is a specific and un-permitted intrusion on the claimant’s body it is for the
claimant to establish that the intrusion was un-permitted. This he Failed to do. Part of the
rationale for this approach is that a contrary result would potentially have posed severe problems
for all doctors not just prison medical officers. Any contact with a patient example vaccinations
or even examining sore throats with a spatula would prima facie constitute battery. To escape
liability the doctor would have to prove consent which would be extremely difficult in cases
involving minor procedures where no written consent has been obtained.

c) Character of the Defendant’s conduct – Assault and battery are similar for the fact that there I
use of force but the difference in the two is that in the former that there is an apprehension of
contact not necessarily the contact itself, that must be established. When there is battery assault
will also exist however not vice versa. There are, however, exceptions; for instance when one is
attacked from behind. In most cases assault is a subset of battery. In other words if the defendant
intends to commit battery, and the plaintiff apprehends it, it is an assault. In the case of false
imprisonment it has been seen that defendant’s conduct plays a role in the fact that there was an
intention in the detaining of the person without a reasonable and moreover a lawful reason. An
act of the defendant which directly and intentionally (possibly negligently) causes the
confinement of the claimant within an area delimited by the defendant.

The act of assault is different from the act of battery, though the act of assault is almost a subset
of Battery. Assault is the apprehension of the physical interference whereas battery is the
General Defenses to Trespass

The law of trespass is essentially segregated into two halves i.e. the tort for criminal trespass
which essentially forms assault and battery

and trespass to property. Each half has its own set of defenses in general. Though a couple of
defenses are the same but yet are different.

The tort of trespass can be given a lax in the case of the defenses that have been prescribed.

The Defenses to trespass are

a) Justification – Certain times there is a lawful justification to the encroachment of a person or

his land. This justification is backed by a lawful reason which has either been given by statute or
by judicial precedent. For example in the case of trespass to land Police officers are permitted to
enter land to make an arrest. And if in the case of Criminal trespass a police officer is entitled to
cause bodily injury in good faith, in the course of his duties. If a suspect to a crime is pointing a
gun at the officer the officer is entitled to use force to apprehend the suspect. There are many
forms of justification. There even could be the presence of a license to enter the land of claimant
which has been obtained under the law. In such cases the encroachment is valid. The two general
principles in the case of justification are a) A justified legal authority encroaching upon a persons
land or using force against a person for lawful reason. B) A distinction between an absolute right
to do an act and the mere power to do an act. When it is the former it is justified but when it is
the latter it is not justified. Entry under a legal process is justifiable.

b) Right to Private self defence – Act of defense of oneself falls under the defense used to protect
oneself from the liability of criminal trespass. The needs to be a reasonableness in the defendant
attitude but the general principle is that the right of private self defence that is exercised is only
when the claimant himself is in the wrong and secondly that the force used in exercise of private
defence is proportionate to the act that has been done.

Conclusion

After thorough research we find equivocal view that trespass , be it against a human or his
property need to establish the fact that there was common goal i.e. the objective is that there
needs to be an intervention with the persons right to retain land or the fact of maintaining a right
to personal dignity.

The tort of trespass can be safely segregated into two halves which being Criminal trespass and
trespass to land or property. The principle in the cases of both is the same i.e. there should be a
wrongful interference. In the case of Land trespass it is to be noted that though everyone has a
right to enjoyment of property one cannot sue for aerial trespass if the trespass is such that it
doesnot clash with the ordinary enjoyment of Land. Furthermore in the case of land it is to be s
 It is the wrongful interference with land which is in the possession of the plaintiff. This tort
consists of three major ingredients (i) Entering upon land which is in possession of the plaintiff
(ii) standing or walking upon such land or Placing or projecting any object upon it without any
legal justification. If the defendant even places a foot on the plaintiff’s property unlawfully, it is
in law as much a trespass as if he had walked half a mile on it.
 Trespass to land
The tort of trespass can be defined as an unjustifiable physical interference of land in possession
of one party by another. Under English common law where these principles of torts emanate,
trespass does not form a criminal act but in the Indian Penal Code it has been given recognition
i.e. under section 441. But it defines trespass as unjustifiable physical interference with the
possession of property of the claimant with requisite intention of doing so. The Intention part is
present due to it being under a criminal code where in ‘mens rea’ is a part. Under English
Common Law the maxim that is used for trespass is ‘trespass quare clausam fregit’ which means
“because he (the defendant) broke or entered into the close”. The tort of trespass requires
essentially only the possession of land by the plaintiff and jut encroachment by some way by the
defendant. There requires no force, unlawful intention or damage nor the breaking of an
enclosure. The express mention of the word interference is mainly there to imply permission.
Permission to encroach onto one’s land can either be obtained by the person in possession or by
virtue of authority.

One of the most important ingredients of a tort of trespass is the fact that the land in question
which has been encroached upon essentially needs to be in the direct possession of the plaintiff
and not just mere physical presence on it. For example it is to be noted that a cause of action in a
suit for trespass doesnot arise in the case where a servant is staying on his masters property.But a
tenant of a property can bring about a cause of action against anyone encroaching onto his
property during the period of his lease and even against the lessor if express conditions in the
contract empower him Lessor –Lesse Relationship

Another essential provision of the tort of trespass includes in the directness of the act. If the act is
direct i.e. arising out of the natural consequences of the act of the defendant then it is valid. If the
consequences of the act are a result of a remote effect of an act then it is not held to be a valid
suit. So if the defendant erects up a tree which leads to growing of branches and boughs and
roots onto the land of the claimant then it is not held to be trespass but nuisance. There is a thin
line between nuisance and trespass. Trespass is encroachment upon property whereas nuisance is
interference upon another’s right to enjoy his property. This is the test to be applied to segregate
the tort of trespass from the tort of nuisance. But it is worthy of being noted that directly causing
 an object to enter onto another’s land does amount to trespass. Therefore if a person’s hounds
enter the other’s land and there was requisite intention of making the hounds enter or there was
negligence in taking care of the hounds so as to enable them to enter onto another’s land it forms
the tort of trespass. Here it should be seen that it is a direct act as either the encouragement or the
negligent act of not taking due care of the hounds to enter onto the plaintiff’s land lead to the
consequence of trespass. Henceforth it can be ruled out that there was any intervening act.

It is a well known principle that if a person enters upon another’s land and stays on it, the act is
connoted as continuing trespass. So either placing gods on the plaintiffs land and not removing
them or staying on the plaintiff’s land and not moving way form’s continuing trespass. It was
seen in the case of Homes V. Wilson[1] that authorities had constructed a road/bridge and to
support such infrastructure had erected buttresses on the plaintiff’s land and had not removed
them. The authorities were liable to pay full compensation and had a further action in continuing
trespass in which they were held liable. The act of continuing trespass remains until such object
or act is removed or stopped respectively.

Furthermore the owner of a land is entitled to the airspace above him but he is aerial trespass has
a very important ingredient which is that the object that enter’s his land aerially should be at such
height that it violates his right to enjoy his property and moreover violate his right of ordinary
use of his land. Therefore it can be said that an airplane that is passing at a height over the
plaintiff’s land cannot for the act of trespass, because it doesnot violate the plaintiff’ ordinary use
of his land.

The subject matter for an action is a notable point. Merely walking on a land possessed by the
plaintiff forms a tort as it involves encroaching upon the legal right to own property. The general
principle of subject matter was prescribed in the many cases. It was held that anything associated
with the soil and which is capable of being possessed individually forms the subject matter in the
tort. Therefore if there is any damage incurred upon any object which is associated with the land
of the plaintiff an action in trespass may be instituted There are many remedies to the tort of
trespass -:
a) Damages – The claimant is entitled to full reparation for his loss incurred. Generally
depreciation in the selling value is an adequate measure for destruction or damage to the subject
matter’s in course of the tort of trespass. If there is an adverse effect onto business due to
trespass the claimant is entitled to recover the profits which were lost. This is called special
damages.

b) Injunctions – These are present for in the case of trespasses to restrain the trespasser. As it was
seen in the case of Nelson V. Nicholson[2] where the Plaintiff had resolved a dispute over the
boundary with the defendant. In resolving this dispute, it became apparent that the defendant had
planted a tree on the plaintiff’s land. The plaintiff filed for a mandatory injunction against D to
get the bush removed

Trespass To Person

English law knows no tort of intention, although it does acknowledge a tort of negligence. The
explanation of the paradox is historical. Until The middle of the last century and before the forms
of action were abolished, wrong doing was remedied by variants of trespass or case. Liability for
intentional conduct was distributed among these two and over the years some form of liability
for intention acquired special names, such as assault and battery, etc. That did not happen with
careless conduct, which fell under trespass or case depending on whether the resulting harm was
direct or consequential.

The tort of trespass then was empowered to encompass the wrongs such as

a) Assault

b) Battery

c) False Imprisonment

The perquisites for these acts all fall under the categories that have been prescribed under The
basic principle of this is that there should be a requisite intention to cause harm or there should
be a direct intervention of the human body. The tort of trespass to person essentially contains the
following ingredients -:

a) Defendant’s State Of Mind – In the case of battery what is crucial, then is to define what is
meant by ‘intentional act’. In this context there are two broad possibilities; One that the
Defendant intended only to act in the way that he did and secondly the Defendant both intended
to act in the way that he did and the resulting contact with the claimant. In most cases there is a
distinction here of little consequence. If the Defendant aims a punch at the Claimant and
succeeds in striking the latter there is nothing to separate the Claimants act from the outcome of
the act. But in some circumstances the Defendant may do a thing without intending a particular
outcome. If the Defendant aims his rifle at the claimant, then pulls the trigger, there is no doubt
that he intended to shoot the claimant. But if the Defendant aims his rifle at a partridge on a
hunting trip but accidentally shoots the Claimant, it is clear that the Defendant intended the act
and not necessarily the outcome. In such circumstances it would be probably stretching a tort too
far to hold the Defendant liable. And in the case of False Imprisonment the tort should be
intentional in the sense that the defendant must intend to do an act which is least substantially
certain to effect the confinement. There is no need to show malice. Indeed even there is good
faith on the part of the defendant, he may still be liable for the intentional confinement of the
claimant. Thus, in R V. Governor Of Brockhill prison, ex P Evans (no 2)[3] . A prison governor
who calculated the claimants day of release in accordance with the law as understood at the time
of her conviction was held liable when a subsequent change in the law meant that the prisoner
should have been released 59 days earlier.

b) No Consent - This ingredient is not only applicable to false imprisonment but also to battery.
The absence of consent is so inherent in the notion of a tortuous invasion of interests in the
person that the absence of consent must be established by the claimant. This might at first seem
rather odd but any lingering doubt that the onus of proving absence of consent lies on the
claimant was laid to rest in Freeman V. Home Office[4]. A prisoner alleged that he had been
injected with powerful mood changing drugs against his will. The judge held that since the
essence of battery is a specific and un-permitted intrusion on the claimant’s body it is for the
claimant to establish that the intrusion was un-permitted. This he Failed to do. Part of the
rationale for this approach is that a contrary result would potentially have posed severe problems
for all doctors not just prison medical officers. Any contact with a patient example vaccinations
or even examining sore throats with a spatula would prima facie constitute battery. To escape
liability the doctor would have to prove consent which would be extremely difficult in cases
involving minor procedures where no written consent has been obtained.

c) Character of the Defendant’s conduct – Assault and battery are similar for the fact that there I
use of force but the difference in the two is that in the former that there is an apprehension of
contact not necessarily the contact itself, that must be established. When there is battery assault
will also exist however not vice versa. There are, however, exceptions; for instance when one is
attacked from behind. In most cases assault is a subset of battery. In other words if the defendant
intends to commit battery, and the plaintiff apprehends it, it is an assault. In the case of false
imprisonment it has been seen that defendant’s conduct plays a role in the fact that there was an
intention in the detaining of the person without a reasonable and moreover a lawful reason. An
act of the defendant which directly and intentionally (possibly negligently) causes the
confinement of the claimant within an area delimited by the defendant.

The act of assault is different from the act of battery, though the act of assault is almost a subset
of Battery. Assault is the apprehension of the physical interference whereas battery is the
General Defenses to Trespass

The law of trespass is essentially segregated into two halves i.e. the tort for criminal trespass
which essentially forms assault and battery

and trespass to property. Each half has its own set of defenses in general. Though a couple of
defenses are the same but yet are different.

The tort of trespass can be given a lax in the case of the defenses that have been prescribed.
The Defenses to trespass are

a) Justification – Certain times there is a lawful justification to the encroachment of a person or

his land. This justification is backed by a lawful reason which has either been given by statute or
by judicial precedent. For example in the case of trespass to land Police officers are permitted to
enter land to make an arrest. And if in the case of Criminal trespass a police officer is entitled to
cause bodily injury in good faith, in the course of his duties. If a suspect to a crime is pointing a
gun at the officer the officer is entitled to use force to apprehend the suspect. There are many
forms of justification. There even could be the presence of a license to enter the land of claimant
which has been obtained under the law. In such cases the encroachment is valid. The two general
principles in the case of justification are a) A justified legal authority encroaching upon a persons
land or using force against a person for lawful reason. B) A distinction between an absolute right
to do an act and the mere power to do an act. When it is the former it is justified but when it is
the latter it is not justified. Entry under a legal process is justifiable.

b) Right to Private self defence – Act of defense of oneself falls under the defense used to protect
oneself from the liability of criminal trespass. The needs to be a reasonableness in the defendant
attitude but the general principle is that the right of private self defence that is exercised is only
when the claimant himself is in the wrong and secondly that the force used in exercise of private
defence is proportionate to the act that has been done.

Conclusion

After thorough research we find equivocal view that trespass , be it against a human or his
property need to establish the fact that there was common goal i.e. the objective is that there
needs to be an intervention with the persons right to retain land or the fact of maintaining a right
to personal dignity.
The tort of trespass can be safely segregated into two halves which being Criminal trespass and
trespass to land or property. The principle in the cases of both is the same i.e. there should be a
wrongful interference. In the case of Land trespass it is to be noted that though everyone has a
right to enjoyment of property one cannot sue for aerial trespass if the trespass is such that it
doesnot clash with the ordinary enjoyment of Land. Furthermore in the case of land it is to be
seen that if the act is direct or indirect i.e. if the trespass is not the natural consequence of the act
done. Then the tort does not apply. Mistake or ignorance is not a remedy to trespass.

The tort of trespass can be continuing in nature, i.e. if a person grows a tree on his land and the
branches come onto the defendants land then it can be said that it is a continuing trespass until
the time such is severed. In case of the occurrence of such tort remedy by way of Damages or
injunctions can be obtained. Injunction’s lay a major role in the tort of continuing trespass. The
Major defense to such act is the Justification clause

Criminal trespass on the other had looks into the state of mind of the defendant which forms a
major part for securing the conviction. It is said that a man intends to do the natural
consequences of an act. Henceforth as illustrated by the researcher in the chapters earlier if a
person points gun at another and pulls the trigger then it can be seen prima facie that there was
intention to shoot the person.

The remedies that are available in such a case are in forms of fines and punishment as such act at
least in Indian Law is constituted under the Penal Code. The defenses to such act extend to right
to private self defence and lawful justification of the act commission of such act.